Explanatory Memorandum to COM(2006)684 - Proposal for a Regulation of the European Parliament and of the Council banning the placing on the market and the import of or export from the EC of cat and dog fur and products containing such fur - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2006)684 - Proposal for a Regulation of the European Parliament and of the Council banning the placing on the market and the import of ... |
|---|---|
| source | COM(2006)684  |
| date | 20-11-2006 |
Grounds for and objectives of the proposal
This proposal for a Regulation of the European Parliament and of the Council is intended to ban the placing on the market and the import to and the export from the Community of fur from cats and dogs and products thereof. It also establishes information requirements aimed at ensuring that information on new detection methods is made available to the Commission and exchanged between Member States, with a view to the possible establishment of common detection methodologies at EU level to identify the species of origin of fur and fur products imported or being put on the market.
The bans are intended to replace the existing varied measures established in several Member States to implement the prohibition to produce and/or trade fur from cats and dogs, and aim at preventing obstacles to the functioning of the Internal Market and thus at ensuring the free movement of fur and fur products in general. The provisions of the draft regulation also aim at ensuring that cat and dog fur and products containing such fur (fur is also used as lining or ornament on clothes, or on toys) produced outside the Community cannot be imported to it or cannot be exported outside the Community.
There is evidence that cat and dog fur and products containing such fur are currently entering the EU and being traded within it, undeclared as such, even though it is difficult to quantify the proportion of cat and dog fur out of the overall figures regarding fur trade in general. The evidence available suggests that most of these products originate from third countries, as there is no tradition of rearing cats and dogs for fur production purposes in the Member States.
For several years consumers have been concerned about the possibility that they could buy fur or fur products made from cats and dogs. As these animals are considered to be companion animals, their fur or fur products are generally not accepted for ethical reasons. The Commission as well as the Member States received during the last years a massive number of letters and petitions on the issue of the cat and dog fur trade expressing consumers’, politicians’ and citizens’ deep indignation and repulsion regarding the trade in cat and dog fur or fur products. These feelings were provoked by scenes presented on the internet and broadcasted on television showing how cats and dogs exploited for fur production are treated in Asia. The footage shows the cruel manner in which animals are killed or skinned alive.
Consumers’ concerns are partly explained by the fact that cat and dog fur is not easily distinguishable to persons from other fur and synthetic material made to imitate fur. As cat and dog fur is also less expensive than other types of fur and can be used as a substitute for more expensive types of fur, an incentive exists for unfair or fraudulent practices in the exploitation of fur products, including fraudulent or deceptive labelling and other practices aimed at dissimulating the true nature or origin of the product.
As a result of the concerns expressed by consumers and citizens, several Member States have adopted (or are in the process of adopting or examining) legislation aiming at restricting or banning economic activities linked to the production of fur from cats and dogs. National legislators are tackling the issue with different measures, ranging from the ban on the rearing of cats and dogs for fur production purposes, to the ban on production and/or import of fur produced from those animals or to labelling requirements. In some cases, the restrictions target only cats and dogs, whilst in others they also cover other domestic animals. Increasing awareness among and pressure from the public on national legislators are likely to result in further legislative initiatives in the Member States aimed at responding to the widespread concern created by the information and data being made available regarding the slaughter of companion animals for fur production purposes.
15 Member States have legislation in place to the effect of restricting the production of cat and dog fur or the trade in products containing such fur.
Whilst there seems to be a very large consensus across all Member States as to the unacceptability of trade and imports of cat and dog fur and products thereof in the Community, the coexistence of different legislative instruments all aimed at remedying the same problem, implies that traders are faced with a set of different legal requirements in the different Member States they wish to trade in, import or export to. As a consequence, the internal market for fur may be fragmented:
(a) as the co-existence of a variety of legal requirements prevents “normal” fur legitimately imported to or produced in the Community from circulating freely within its boundaries, intra-community trade fluxes being subject to a number of different restrictions enforced at national level;
(b) as traders need to adjust their commercial practices to the different provisions in force in each Member State, thus facing additional costs due for instance to the necessity to acquire specific legal expertise or to the need to ensure compliance with labelling requirements;
(c) as consumers of fur products in general are discouraged from buying cross borders, due to the uncertainty regarding the applicable legal framework in a country other than their own. Such uncertainty operates as a dissuasive factor with those consumers who want to avoid buying cat and dog fur or contribute in any way to such trade.
The Treaty does not allow the Community to legislate on the basis of ethical concerns. Some Member States have on the other hand taken those concerns into consideration when legislating in matters as the one at hand.
The Treaty, however, attributes to the Community to adopt measures aimed at preventing obstacles that may affect the functioning of the Internal Market. Trade in fur from fur animals is a legitimate trade under Community legislation. Obstacles to such trade must therefore be countered.
It follows from the Court of Justice’s well established case-law that where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market, Community measures are justified in order to prevent such obstacles.
As the Court held in its judgement of 14 December 2004 in case C-434/02 (Arnold André), “where there are obstacles to trade or it is likely that such obstacles will emerge in future because the Member States have taken or are about to take divergent measures with respect to a product or a class of products such as to ensure different levels of protection and thereby prevent the product or products concerned from moving freely within the Community, Article 95 EC authorises the Community legislature to intervene by adopting appropriate measures, in compliance with Article 95 i EC and with the legal principles mentioned in the Treaty or identified in the case-law, in particular the principle of proportionality.
Depending on the circumstances, those appropriate measures may consist in […] provisionally or definitively prohibiting the marketing of a product or products”.
Having regard also to the public’s growing awareness and unease with the presence of cat and dog fur in the fur and fur products markets it is likely that more obstacles to the free movement of those products would emerge by adoption of new rules in Member States to prevent the placing on the market of cat and dog fur.
The harmonization of the different prohibitions and/or other restrictive measures currently in place is the easiest and lightest way of preventing obstacles for the market of fur from fur animals.
The evidence made available to the Commission leads to consider that the vast majority of the cat and dog fur products present in the Community originate from third countries. Thus, the establishment of the ban trade must be accompanied by an equivalent ban on imports of the same products into the Community.
The import ban, whilst reinforcing the ban on intra-community trade, also responds to the ethical concerns expressed by EU consumers as to the possible introduction in the Community of fur from animals kept and slaughtered inhumanely. The ban on exports should ensure that cat and dog fur and products containing such fur are not produced in the Community for export purposes.
General context
There is a strong political demand to ban the trade on cat and dog fur or fur products. Member States have asked the Commission several times to undertake an initiative to ban the trade of cat and dog fur or products containing such fur in the Community.
In December 2003, the European Parliament adopted a declaration on a ban of the trade in cat and dog fur requesting the Commission to draft a regulation under internal market powers to ban the import, export, sale and production of cat and dog fur and skins, so as to restore the confidence of EU consumers and retailers and to end this trade.
The Council of Agriculture Ministers in November 2003 and again in May 2005 asked by a vast majority for an initiative at Community level to stop the trade in cat and dog fur and fur products. They highlighted that a ban at Community level would be more effective than national bans which cannot be effective. Some Member States have already introduced a ban on the trade in cat and dog fur.
Consistency with other policies and objectives of the Union
The proposed bans are consistent with normal farming practices in the Community and are without prejudice of other Community provisions applicable in the agricultural sector.
By banning from the market products to which most consumers and citizens object, this proposal helps restoring consumers’ confidence in the acceptability of products whose placing on the market is regulated at Community level.
Furthermore, as to the import ban, it is also in conformity with Article XX(a) of the General Agreement on Trade and Tariffs (GATT), under which the adoption or enforcement by any contracting party of measures necessary to protect public morals is allowed provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination. The contextual adoption of the intra-Community trade ban ensures compliance with GATT requirements.
Consultation of interested parties
Member States expressed their wish for a ban on trade of cat and dog fur during the Council of Agriculture Ministers in November 2003 and in May 2005, pointing out that national bans on trade are not as effective as an initiative at Community level.
Several Members of the European Parliament have actively campaigned in favour of a Community initiative.
A massive number of letters from concerned citizens have been sent to the Commission during recent years expressing deep indignation and repulsion regarding this trade.
The Commission has been in contact with the International Fur Trade Federation, which stressed that their members, who mostly target the upper end of the market, are not trading in cat and dog fur, whilst admitting that the trade in cat and dog fur is difficult to detect.
The Federation also expressed their worries as regards possible further initiatives aiming at banning fur in general from the EU market, as this would disrupt their trade altogether. The scope of the present proposal and its justification respond to such worries.
Collection and use of expertise
TOTAL IMPORT OF RAW FUR IN EU 25 (tons)
Year Total import From China Major source
1101, 22, Norway 383,
1254, 39, Canada 288,
Year Total import From China Major source
TOTAL IMPORT OF ARTICLES OF APPAREL, CLOTHING ACCESSOIRES AND OTHER FURSKIN ARTICLES according to code 4303 IN EU 25 (tons)
Year Total import From China Major source
For the reasons given above, there is no official data on the trade in cat and dog fur available.
A questionnaire aimed at collecting information on existing and forthcoming legislation on this matter and on detection methods used to enforce the national bans was addressed to the Member States (see the impact assessment paper for the results).
Impact assessment
The identified policy options were as follows:
This option would leave the current situation unchanged and therefore not respond to the existing obstacles to the functioning of the internal market for fur products. Neither would it address the likely occurrence of further disruptions to that market due to the forthcoming adoption of new legislative measures by different Member States.
The increasing public concern about cat and dog fur or fur products being put on the internal market against a widespread feeling of repulsion for such products would also remain unaddressed.
National bans and other restrictive measures adopted at national level as regards the trade in cat and dog fur are not able to dispel consumers’ concerns.
This option would address directly the core of the issue being tackled with a variety of different instruments at Member States’ level (the undesirable presence of cat and dog fur on the fur and fur products market), thus eliminating the need for fur and fur product traders to adjust their commercial behaviour to the different requirements in place in the different Member States.
At the same time, this option would respond to the public expectations that fur from cats and dogs or such fur products are not imported and/or placed any more on the internal market. It will avoid consumers being discouraged from buying fur or fur products because they are not sure of buying fur from animals traditionally kept as fur animals.
Only very little official data are available concerning trade or imports of cat and dog fur or products containing such fur, although it can be assumed from the anecdotal evidence available that such products represent a marginal part of the overall volume of fur and fur products being traded in or imported to the Community. Therefore, it is impossible to quantify exactly the effects of a ban that would prohibit trade and imports of such products.
For that reason it could also be assumed that the volume of trade in fur and fur products derived from animals normally reared for fur production is likely not to be adversely affected by the enforcement of the proposed ban. Of course, this statement does not apply to trade in cat and fur and products containing such fur which are not declared as such, being such trade illegal in many Member States.
Voluntary labelling schemes already exist and aim at identifying the species of fur. These initiatives have been endorsed by fur trader associations in Italy, Germany, Norway and the United Kingdom. In September 2003, the International Fur Trade Federation, a federation of trade associations and organisations representing all sectors of the fur trade in 30 countries worldwide i, presented a new labelling initiative to improve consumer information. This label contains the scientific Latin name as well as the name of the species either in the local language and/or the English translation. The scheme has been approved in Italy by the Italian Standardisation Organisation i (UNI). This labelling scheme is mostly used for high quality fur.
Due to the particular nature of the trade, voluntary labelling schemes are usually not adhered to by traders using cat and dog fur or products containing such fur. In addition, also existing schemes do not always include labelling of fur that is used as an ornament and for linings or toys.
Voluntary labelling schemes are unsatisfactory to respond to deceitful labelling or illicit trade and they have actually proven useless in preventing the introduction of cat and dog fur in the Community. Consumers are concerned to buy cat and dog fur even if the product got a label as there have been reports published in newspapers and broadcasted on TV that cat and dog fur is sold labelled fraudulently under the name of another species or under a fancy name.
This option would entail the establishment of a mandatory labelling requirement for all fur and products containing fur, whereby all such products must be labelled in a way that allows the identification of the species from which the fur (or fur component) has been obtained. Such general requirement would impose a considerable burden on all fur traders (including those who do not trade in cat and dog fur), not proportionate to the result being sought, as cat and dog fur represents only a small proportion of fur traded on the European market.
Mandatory labelling would prove particularly burdensome and costly in the case of minute and/or low value products containing fur, where the mere presence of a tiny fur component would trigger the obligation to identify the origin of the fur that was used.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- 2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- Data on fur trade were collected from EUROSTAT and provide the following figures
- TOTAL IMPORT OF TANNED FUR IN EU 25 (tons)
- 3780, 531, China
- 4051, 1295, China
- 1985, 890, China
- 3001, China
- No action
- Ban on trade, imports and exports of cat and dog fur and products containing it
- Self-regulation
- Mandatory labelling scheme
- 5. ADDITIONAL INFORMATION
- Not applicable
Summary of the proposed action
The proposed Regulation of the European Parliament and of the Council bans the placing on the market, the import and export of cat and dog fur and products containing such fur and requires the Member States to inform each other about analytical methods used to identify cat and dog fur.
Legal basis
The proposal is based on Articles 95 and 133 of the Treaty. In the drafting of this proposal, the Commission has taken due account of the case law of the Court of Justice where the Court set up the conditions for the recourse to Article 95 (Judgements Arnold André of 14 December 2004, C-434/02, point 34 and Swedish Match, C-210/03, point 33 ; British American Tobacco and Imperial Tobacco, C-491/01 of 10 December 2002, points 60 and 61 ; C-66/04 of December 2005, point 41 and C-154/04 and C-155/04 (Alliance for Natural Health), point 32).
As the proposal also aims at banning imports and exports of the products in question from outside the Community, reference to the provisions of Article 133 is also necessary. The proposal has indeed a twofold component as it simultaneously pursues two different objectives (the ban on intra-Community trade and the ban on imports and exports) which are inseparably linked without one being secondary and indirect in relation to the other.
The procedures laid down for the adoption of Community legislation under Articles 95 and 133 respectively are not incompatible with each other.
Subsidiarity principle
The proposal aims at the harmonization of laws concerning the trade in cat and dog fur or fur products. This harmonization at Community level is necessary to prevent obstacles in the market for fur produced from fur animals in the Community. Such result could only be obtained by measures taken at Community level. National measures, including total bans, by definition only enforceable in parts of the internal market, have proven ineffective and are causing the fragmentation of the market of fur.
Member States expressed their view that a ban on trade of cat and dog fur and products containing it at Community level is necessary as national bans are not as effective. Member States that have already introduced a national ban pointed out that a uniform ban at Community level is necessary to ban cat and dog fur from the internal market.
The proposal therefore complies with the subsidiarity principle.
Proportionality principle
The proposal complies with the proportionality principle for the following reason(s).
Labelling of fur and fur products is not an alternative to a ban on trade in cat and dog fur or fur products. Such labelling cannot completely dissipate consumers’ concerns regarding the fact that cats and dogs can be slaughtered for fur production purposes and that therefore in case of fraudulent or misleading labelling they might buy cat and dog fur.
Moreover, at the present stage, the option of establishing a general mandatory labelling requirement for all fur and fur products would impose an additional and disproportionate burden on industry. Whilst such burden would undoubtedly be an option to be considered if a more horizontal approach to fur trade were to be investigated, it seems inappropriate in the case at hand as the problem to be solved is the (commonly considered undesired) presence on the market of fur obtained from species of companion animals such as cats and dogs.
Furthermore, it is proposed to provide for the limited possibility to derogate from the general ban for fur of cats and dogs and products containing such fur if it can be ensured that it originates from cats and dogs that have not been bred or killed for fur production, and if it is labelled as such, as well as for fur solely introduced to or exported from the Community for personal use.
In the circumstances, the ban of this fur is the least burdensome measure to be taken.
Choice of instruments
Proposed instrument: Regulation.
It offers the advantages of having general and uniform application, being binding in its entirety and directly applicable in all Member States on the same day, without the additional administrative burden of a national act being necessary for transposition
Only if it is necessary for the uniform enforcement of the Regulation, common rules regarding the analytical methods to be employed for control purposes may be established by comitology procedure.
Other means would not be adequate. A Directive requires national measures of implementation and increases the risk of divergent application. The enforcement of a ban relies on Member States while they keep the freedom on how to ensure that cat and dog fur and fur products are no longer placed on the market, imported and exported and to develop the methods of how to enforce the ban.
Enforcement of the ban
The enforcement of the proposed ban requires the availability and improvement of analytical methods to distinguish cat and dog fur from other species’ (in particular fox and wolf). As most fur from cat and dog is produced and processed in third countries and enters the Community as part of a garment or toy, the analytical methods must allow cat and dog fur identification also where fur has been treated (e.g. dyed, as dyeing may destroy the natural structure of a fur and even destroy the DNA).
Several methods are currently available and reported to be in use by the competent authorities of those Member States where a ban on trade, import or export is already in place. The methods offering the most reliable results according to the evaluations provided by Member States’ authorities are: microscopy, DNA testing and the MALDI-TOF Mass Spectrometry. These methods provide different degrees of reliability. In particular the MALDI-TOF Mass Spectrometry is in general able to detect fur from domestic cat and dog and recent results suggest that this is probably also the case for treated fur. In the EU there is at least at present one laboratory offering this analysis of fur commercially. The Commission is informed that the technology necessary to perform the MALDI-TOF Mass Spectrometry is available in several laboratories in Member States. Once a EU wide ban will be in force other laboratories would thus be able to perform this analysis if they developed the necessary database.
Despite the use of different techniques for the detection of cat and dog fur at present the entry into force of a EU wide ban should lead in the future to the positive effect of the application of a common approach to the enforcement by Member States. Therefore it is appropriate for the information regarding such techniques to be shared among Member States and made available to the Commission, so that enforcement bodies are kept up to date to innovation in this field.
The proposal has no implication for the Community budget.
Review/revision/sunset clause
The proposal does not include any of these clauses.
Correlation table
European Economic Area
The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.